PROVISIONAL CONCLUSIONS IN THE TRIAL OF HECTOR RISCART

21122012

TO THE FOURTH PENAL CRIMINAL COURT OF THE POPULAR PROVINCIAL TRIBUNE OF HAVANA

THE JUDGE STATES: That in accordance with article 278 of the LPP and deeming complete the proceedings of the EFP 3-826/11 of the Department of Penal Proceedings of the Municipality of Old Havana, following the crime of PRODUCTION, SALE, DEMAND, TRAFFIC, DISTRIBUTION AND POSSESSION OF ILLICIT DRUGS, NARCOTICS, PSYCHOTROPIC SUBSTANCES AND OTHERS OF SIMILAR EFFECT the present and wishing to resolve in accordance with the petitions formulated hereupon:

A: Having the accused HECTOR RISCART MUSTELIER assured with the cautionary measure of PROVISIONAL IMPRISONMENT.

B: Commencing the trial to Oral Judgement, to which effect the following are formulated.

PROVISIONAL CONCLUSIONS

FIRST: On the 16th of November of 2011, at approximately 02:00 hours, the accused in custody HECTOR RISCART MUSTELIER, who was under control of the National Antidrug Management, by virtue of the prior knowledge that the subject was dedicated to the commercialization of the drug known as Marijuana with the aim of increasing in an undue manner its personal gain in his place of residence, dealing with the municipality of Cerro and Central Havana, was detained by the agent of Public Order Maikel Atiet Creagh, who was fully uniformed and carrying out his service as guard and patrol in the area and had received an hour earlier the information on behalf of off-duty agent Ernesto Martinez Ramirez who had seen the accused RISCART MUSTELIER commercializing drugs within the National Cabaret, situated on San Rafael Street between Prado and Consulado, Central Havana, Havana, taking advantage of the musical performance of the Reggae group HERENCIA of which the accused acted as director. That once the accused RISCART MUSTELIER was roaming around the outside of said Cabaret accompanied by citizens Adrian Obregon Janero, German Daniel Rivera Diaz, and Zenen Mario Abreu Peña, exactly at the intersection of Prado and San Jose, Old Havana, Havana, was approached by the aforementioned agent Maikel Atiet who proceeded to ask them for their identifications and to carry out a pat-down search of each one, leaving the accused for last. When it came to the turn of the accused RISCART MUSTELIER after having arrived at the scene police agents Wilbert Durruthy Favier, David Rosseaux Columbie (this last, Chief of Police) the accused turned over his identity card and refused to be bodily searched stating that he preferred to be searched at the Police Unit and not on site since he was an artist, as he walked back and forth taking small steps, thereby causing agents Maikel Atiet and Wilbert Durruthy to react by holding him by the arms whereupon the accused with the purpose of impeding the police action got loose by pulling with his body and managed to free one arm from the hold of said agents with which he nimbly took off his white turban covering his head and his abundant hair worn in the form of Dreadlocks, and flung it to the floor revealing two parcels of transparent white nylon previously bundled in the turban, of which the first contained: three nylon bundles with green colored vegetable cuttings, of these one with a net weight of 0.52 grams, another with 5.48 grams of marijuana, and the last with 1.85 grams of marijuana, and the second parcel with 6 cigarettes with plant cuttings of 0.86 grams of marijuana inside, four of them in white paper and the remaining two in black and white paper, a bundle which contained a total of 11 marijuana seeds with a net weight of 0.21 grams and a nylon bag containing a single dark red and round seed popularly known as OJO DE BUEY (eye of bull), of approximately 5.5 cm in diameter, with a hole in both extremes and remains of ashes in its interior. Proceeding immediately to conduct the accused RISCART MUSTELIER to the police station where he was consequently informed of previously formulated charges for the corresponding accusation, as well as legally confiscating all previously mentioned bundles.

That during the investigation process the two transparent white nylon parcels that were confiscated were submitted to the Central Criminal Laboratory with all of their aforementioned contents, as well as a sample of urine of the accused RISCART MUSTELIER and after being subjected to chemical studies, it was concluded that the samples of plant cuttings in the nylon bundles of 5.48 and 1.85 grams and of the six cigarettes, as well as the 11 plant seeds and the ashes within the round, dark red seed corresponded to the drug Cannabis Sativa L. The aforementioned known as the marijuana plant with a gross net weight of 65.25 grams, as far as the urine sample of the accused RISCART MUSTELIER, the presence of marijuana and its metabolites were detected and proven, thus it was also proven that in the nylon bundle of 0.52 grams, the presence of marijuana, cocaine, or their metabolites were not detected. That marijuana is currently found subject to international oversight in lists I and IV of the Unique Convention of Narcotic Substances of 1961, of which Cuba is a signing member. That the samples of marijuana together with their wrappings were remitted to the drug depository of the Criminalistics Investigation Division situated at 100 and Aldabo, Boyeros, posteriorly proceeding to their incineration.

The accused, HECTOR RISCART MUSTELIER, 40 years old, Cuban citizen, son of Antonio and Caridad, born in Havana and residing at 471 Subirana Street, Apt. 2, between Manglar and St. Martha, Central Havana, Havana, was known to currently reside at the residence of his spouse, citizen Zurayma Janero Damasco resident of 363 San Joaquin, first floor, between Calzada de Monte and Omoa, Cerro, where he maintains good relations with the neighbors, participates sporadically in CDR* activities, was typically reserved, is currently linked to the musical reggae group HERENCIA, which in the final months of 2011 his lifestyle level has risen considerably noting the purchase of home appliances in his living quarters and in his dress, gets together with individuals of dismal social conduct, of which many are drug traffickers. There is proof of penal antecedents judicially sanctioned in cause 118/2004 of the Popular Provincial Tribune of Havana, for a crime of Production, Sale, Demand, Trafficking, Distribution and Illicit Possession of Drugs, Narcotics, Psychotropic Substances, and others of similar effects thereby sanctioning to two years of deprivation of freedom which he left extinguished on February 12, 2005.

SECOND: That the aforementioned acts constitute a crime of PRODUCTION, SALE, DEMAND, TRAFFIC, DISTRIBUTION AND POSSESSION OF ILLICIT DRUGS, NARCOTICS, PSYCHOTROPIC SUBSTANCES AND OTHERS OF SIMILAR EFFECTS, planned and sanctioned in article 109.1a) of the Penal Code and a crime of RESISTANCE predicted and sanctioned in article 143.1 of the Penal Code.

THIRD: That the accused are responsible in conception of authors of the crime charged by direct execution according to that established in article 18.1 and 2a) of the Penal Code.

FOURTH: That sufficient circumstances of the penal responsibility established in article 55.1.3.a) of the Penal Code combine.

FIFTH: That the sentence to be imposed upon the accused Hector Riscart Mustelier for the crime of PRODUCTION, SALE, DEMAND, TRAFFIC, DISTRIBUTION AND POSSESSION OF ILLICIT DRUGS, NARCOTICS, PSYCHOTROPIC SUBSTANCES AND OTHERS OF SIMILAR EFFECTS is that of TEN YEARS OF DEPRIVATION OF FREEDOM, and for the crime of RESISTANCE is that of ONE YEAR OF DEPRIVATION OF FREEDOM, for a single and joint sentence of TEN YEARS OF DEPRIVATION OF FREEDOM in accordance with the aforementioned 56.1.b) of the Penal Code and the accessory sentence of Deprivation of rights foreseen in Article 37.1.2 of the Penal Code.

CIVIL RESPONSIBILITY: Not required.

OTHERS: The proofs upon which the Public Prosecutor hopes to rest are as follows: A.) Declaration of the accused, if he so agrees. B.) Documentation in folio: 20: Record of possession of sample of urine of citizen Zenen Mario Abreu Peña; 27: Resolution of entry or Search in the home of the accused with negative results; 34: Record of delivery of the black bag with handle which contained in it’s interior a black, Parker brand DVD to the mother of the accused; 37: Record of possession of the two white, transparent nylon bags confiscated with all their contents aforementioned; 38: Record of having sealed the two white, transparent nylon bags taken into possession with all of their contents aforementioned; 39 through 42: Illustrative photo-board of the two white, transparent nylon bags confiscated with all of their aforementioned contents and of the accused wearing his turban; 43: Record of possession of a urine sample of the accused; 44 and 46 through 47: Investigation of accused’s person on behalf of the Territorial Antidrug Unit of San Miguel del Padron; 45: Report of the investigation of the accused’s person on behalf of the Territorial Antidrug Unit of Central Havana; 49 through 50: Penal antecedents of the accused; 52: Certificate of cause 118/2004 of the TPP of Havana; 55 through 58: Expert Chemical-Criminal Drug Report; 59: Report of incineration of drugs. C.) Accompanying testimony report according to list of eyewitnesses to declare upon the facts. D.) Expert report consisting of the experts Yosmel Fernandez Valdez and Milagros Rodriguez Igarza, located at Central Criminal Laboratory on Zulueta between Tte Rey and Dragones, Old Havana, Havana, regarding analyses carried out on the confiscated drug, quantity, results of analyses and other facts of interest.

WITNESS LIST:

1.) Maikel Atiet Creagh (F-3-4-5), acting Public Order Agent, located at the Specialized Police on Cuba and Chacon Streets, Old Havana, Havana, to declare about his whereabouts the day and hour of the occurrences, from the time he was found controlling the accused Angel Laguen, for what motives, what information he had, who offered it to him, when he proceeded to his detention, under what circumstances, what was confiscated from the accused, where it was being carried, how he behaved upon being detained, if the accused admitted ownership of the confiscated drug, if he knew that the accused were controlled by the antidrug department, to what he was dedicated, other data of interest.

2. – Ernesto Martinez Ramirez (F-7 to 10), official contacted at the Police Department located at Cuba and Chacon Street, Habana Vieja, Havana, to declare about his whereabouts the day and hour of the occurrences, from the time he was found controlling the accused Angel Laguen, for what motives, what information he had, who offered it to him, when he proceeded to his detention, under what circumstances, what was confiscated from the accused, where it was being carried, how he behaved upon being detained, if the accused admitted ownership of the confiscated drug, if he knew that the accused were controlled by the antidrug department, to what he was dedicated, other data of interest.

3. – Wilber Durruthy Favier (F-6), acting AOP, reachable at the Police Department located in Cuba and Chacon Street, Habana Vieja, Havana, to declare about his whereabouts the day and hour of the occurrences, from the time he was found controlling the accused Angel Laguen, for what motives, what information he had, who offered it to him, when he proceeded to his detention, under what circumstances, what was confiscated from the accused, where it was being carried, how he behaved upon being detained, if the accused admitted ownership of the confiscated drug, if he knew that the accused were controlled by the antidrug department, to what he was dedicated, other data of interest.

4. – David Rousseaux Columbié (F-11-12-13), AOP acting, reachable at the Police Department located in Cuba and Chacon Street, Habana Vieja, Havana, to declare about his whereabouts the day and hour of the occurrences, from the time he was found controlling the accused Angel Laguen, for what motives, what information he had, who offered it to him, when he proceeded to his detention, under what circumstances, what was confiscated from the accused, where it was being carried, how he behaved upon being detained, if the accused admitted ownership of the confiscated drug, if he knew that the accused were controlled by the antidrug department, to what he was dedicated, other data of interest.

5.- Zenén Mario Abreu Peña (F-16 to 19), eyewitness, reachable at San Joaquin Street no. 378 between Monte and Omoa, Cerro, Havana, to declare about his whereabouts the day and hour of the occurrences, how the defendant behaved at the time of arrest, if he had used marijuana the day of the incident, if the accused admitted ownership of the confiscated drug, other data of interest.

6.- Yoandrys Solón Hidalgo (F-23-24), the DNA Operating Officer, reachable at 247 Street Building 17 Apt 24 between 242 and 244, Abel Santamaría, Boyeros, Havana, to declare where he was the day and time of the occurences, what information he had of the accused, if he was controlled by them, from what date, what he did, if he involved in the arrest of the accused, specifically where dealt drugs, other data of interest.